Third District Finds Reconsideration Was Erroneous and Finds No Basis for CCP § 473 Relief.
Here is a case that segues well with what we have advocated in many prior posts: when you prepare fee requests, make sure your papers provide the lower court with a roadmap, and a roadmap supported by competent evidence of hourly rates, work, and any apportionment of time if that is appropriate.
Corona v. Stull, Case No. C062281 (3d Dist. Sept. 28, 2010) (unpublished) involved a plaintiff who recovered over $6 million in a wrongful death/personal injury suit against a defendant who was convicted of drunk driving. Plaintiff moved to recoup attorney’s fees under Code of Civil Procedure section 1021.4, a special fee-shifting statute that allows a plaintiff recovering damages against a defendant based upon defendant’s commission of a felony offense to later seek fee recovery from defendant. Plaintiff sought 40% of the judgment as a fee recovery. Unfortunately, plaintiff’s initial moving papers had no declarations upon which to base the fee award, so it was denied although the lower court did find a fee entitlement basis under section 1021.4. Plaintiff then moved for reconsideration supplemented with declarations and fee substantiation, a request that was granted and resulted in a 180 degree turnaround—plaintiff was awarded fees of $155,000 as against defendant. That prompted an appeal by defendant.
The Third District, in a 3-0 opinion authored by Justice Cantil-Sakauye, reversed.
The appellate panel found that the reconsideration request was flawed because the dilatory presentation of fee substantiation, something within the control of plaintiff’s attorneys, was not "new evidence" under Code of Civil Procedure section 1008 (the reconsideration statute). The Court of Appeal concluded that section 1008 could not be used to accomplish a complete "do-over" of an earlier result when the stringent requirements of the reconsideration statute were not met.
Code of Civil Procedure section 473, the relief escape valve, provided no solace to plaintiff, because that provision was never intended as a catchall for attorney mistakes.
This decision should be paid attention to by litigators, since it was authored by Justice Cantil-Sakauye, who is going to succeed Justice Ronald George as Chief Justice of the California Supreme Court. Justice George, in our view, served well in this position, doing so with grace and collegiality.